They’re Baaaaack!Hoping to overturn their convictions after prison, the Haidl Gang Rape defendants renew their attacks on their victim

It has been seven years since three Southern California teenagers videotaped themselves gang-raping an unconscious minor on a garage sofa and pool table at a wild high-school party in ritzy Corona del Mar. It has been more than three years since those defendants admitted their guilt in hopes of lenient sentences and landed in prison to serve portions of six-year sentences. It has even been 14 months since all three felons returned to society. But the infamous Haidl Gang Rape case that won international attention won’t die.

Later this month, all three convicted felons—Greg Haidl, Kyle Nachreiner and Keith Spann—return to an Orange County courthouse to officially flip-flop on their once-weepy admissions of guilt for shoving not just their anatomical parts into 16-year-old Jane Doe’s vagina and anus, but also a Snapple bottle, lit cigarette, apple-juice can and pool stick.

Anyone familiar with this disgusting case won’t be surprised that those presentencing admissions, supplemented with emotional apologies to the victim and assurances of remorse, carried a sincerity-expiration date. Neither will they be shocked to learn that the new strategy to overturn the convictions is really the same, tired defense strategy: Don’t believe Haidl’s graphic 20-minute homemade DVD that was lost and eventually recovered by the Newport Beach Police Department. (The horrified cops who first saw the film thought the defendants had had sex with a corpse.)

Indeed, the defense has slyly renewed its old courtroom assertion that the 5-foot-5, 120-pound, high-school-sophomore victim—powered by “evil” and “sexual deviancy”—essentially raped the three older, larger men by enticing them into sex, faking unconsciousness, and then lying about her willing participation. According to Haidl appellate attorney Dennis A. Fischer of Santa Monica, the prosecution cloaked Doe’s act by allowing her to maintain “an aura of self-pity and righteousness.”

“Of course, had Doe acknowledged that, although drunk, she was aware of the sexual activity and still consented to it, the People’s case would have fallen apart—video or no video,” Fischer wrote in a brief to the state Court of Appeal. “The evidence went a long way toward undermining Doe’s insistence she never would have consented. That evidence was readily available, but the court refused to admit it.”

According to Fischer, Superior Court Judge Francisco Briseño violated the defendants’ constitutional right to a fair trial by refusing to let Joey Cervantes, a proposed last-minute defense witness, tell jurors about a lewd experience with Doe. Cervantes’ accusations have been deleted from numerous pages in public files. But defense and law-enforcement sources tell me that Cervantes would have testified that in June 2002—a month before the rape—a sober Doe willingly engaged in public sex with Spann that included insertions of foreign objects, including a lit cigarette, into her vagina and anus. Cervantes added that Haidl was in a group of teenagers who also witnessed the scene.

“What was especially relevant about the Cervantes evidence was that it directly called into question Doe’s testimony she never would have consented to the [redacted] acts depicted in the video,” Fischer wrote. “No other evidence before the jury came close to rebutting Doe’s adamant denials that she would have consented.”

But prosecutors doubt Cervantes’ credibility, and at the trial, Briseño determined that the defense had already presented “a great deal of evidence” sliming Doe. The judge went on to list that Doe—a straight-A student—abused alcohol and drugs, frequently lied to her parents about her whereabouts, and was promiscuous in public and private settings. Furthermore, the judge decided that Cervantes’ testimony was unnecessary because Doe’s credibility wasn’t the central point of the trial. Haidl’s DVD was Exhibit A, he said.

In her legal brief submitted to the appellate justices on behalf of the Orange County district attorney’s office, Deputy Attorney General Lise S. Jacobson backed Briseño. “The video camera was the People’s star witness, and the lack of actual consent was not an element of the charged offenses,” Jacobson wrote. “As the trial court noted, ‘the video in this case is graphically compelling’ and ‘shows that Doe was a person that was completely out while she was on the pool table. . . . She was not aware of her environment.’”

But Haidl’s appellate defense team argues that even if Doe had passed out, the defendant’s knowledge of Doe’s previous promiscuity coupled with her arriving at a party alone and drinking alcohol was the equivalent of her orally uttering “yes” to the videotaped gangbang.

Of course, in California, it is illegal to have sex with anyone who is not in a mental condition to say “no” at any point during the interlude—even if they have consented to sex on earlier occasions. (Such a statutory notion means that even a prostitute can be a rape victim.)

In the Haidl case, the defendants were charged with rape by intoxication. During the trial, prosecutor Chuck Middleton argued that the three men should have known that the girl was incapacitated because:

• After giving her a marijuana cigarette to smoke, they handed her a can of beer followed by an 8.5-ounce glass of straight, 94-proof Bombay Gin, which she gulped in their presence.

• On the DVD—banned from public consumption because it has been classified as child pornography—the defendants looked directly into Doe’s rolled-back eyes and gave one another hand signals indicating that she had passed out.

• Doe’s body was as limp as a rag doll’s during a majority of the film; indeed, at one point, when Spann and Nachreiner sandwiched her body, they let go of their grip, and she failed to react, causing her head to strike the edge of a couch.

• To check Doe’s lack of consciousness, the defendants pinched her nipples, slapped her butt and finger-flicked her facial cheeks.

• Despite the defense team’s insistence that Doe was faking unconsciousness, the girl didn’t move when she urinated on the pool table as the defendants repeatedly plunged a pool cue into her anus and vagina.

If the fake-unconsciousness angle fails, the Haidl defense lawyers—who have totaled more than a dozen at a time—are also claiming that the convictions (and lifetime sex-offender-registration requirements) should be erased because Briseño didn’t admit evidence that Doe once had been convicted of misdemeanor possession of methamphetamine and that Doe allegedly considered accepting a proposed $2.5 million pretrial payment by then-Orange County Assistant Sheriff and used-government-car salesman Don Haidl, Greg’s ultra-wealthy father, to keep her mouth shut. According to Fischer, “The jury never learned of Doe’s willingness to violate the law.”

OC prosecutors and officials at the California attorney general’s office insist the additional defense claims are without merit or, alternatively, “harmless errors.” Now it’s time for a three-judge state appellate panel in Santa Ana to decide who is right. The public hearing is scheduled for Sept. 23.

R. Scott Moxley’s award-winning investigative journalism has touched nerves for two decades. An angry congressman threatened to break Moxley’s knee caps. A dirty sheriff promised his critical reporting was irrelevant and then landed in prison. Corporate crooks won’t take his calls. Murderous gangsters mad-dogged him in court. The U.S. House of Representatives debated his work. Pusillanimous cops have left hostile messages using fake names. Federal prosecutors credited his stories for the arrest of a doctor who sold fake medicine to dying patients. And a frantic state legislator literally caught sleeping with lobbyists sprinted down state capital hallways to evade his questions in Sacramento.